Legislature(1997 - 1998)

03/28/1998 01:14 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
         HOUSE JUDICIARY STANDING COMMITTEE                                    
                   March 28, 1998                                              
                     1:14 p.m.                                                 
                                                                               
                                                                               
MEMBERS PRESENT                                                                
                                                                               
Representative Joe Green, Chairman                                             
Representative Brian Porter                                                    
                                                                               
MEMBERS ABSENT                                                                 
                                                                               
Representative Con Bunde, Vice Chairman                                        
Representative Norman Rokeberg                                                 
Representative Jeannette James                                                 
Representative Eric Croft                                                      
Representative Ethan Berkowitz                                                 
                                                                               
COMMITTEE CALENDAR                                                             
                                                                               
HOUSE BILL NO. 406                                                             
"An Act relating to subsistence uses of fish and game."                        
                                                                               
     - HEARD AND HELD (CONTINUED FROM MARCH 27, 1998)                          
                                                                               
(* First public hearing)                                                       
                                                                               
PREVIOUS ACTION                                                                
                                                                               
BILL:  HB 406                                                                  
                                                                               
SHORT TITLE: SUBSISTENCE USES OF FISH AND GAME                                 
SPONSOR(S): RESOURCES                                                          
                                                                               
Jrn-Date    Jrn-Page           Action                                          
 2/12/98      2312     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 2/12/98      2312     (H)  RESOURCES, JUDICIARY, FINANCE                      
 2/17/98               (H)  RES AT  1:00 PM CAPITOL 124                        
 2/17/98               (H)  MINUTE(RES)                                        
 2/21/98               (H)  RES AT  1:00 PM CAPITOL 124                        
 2/21/98               (H)  MINUTE(RES)                                        
 2/24/98               (H)  RES AT  1:00 PM CAPITOL 124                        
 2/24/98               (H)  MINUTE(RES)                                        
 2/27/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 2/27/98               (H)  MINUTE(JUD)                                        
 2/28/98               (H)  RES AT  9:00 AM CAPITOL 124                        
 2/28/98               (H)  MINUTE(RES)                                        
 3/03/98               (H)  RES AT  1:00 PM CAPITOL 124                        
 3/03/98               (H)  MINUTE(RES)                                        
 3/04/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/04/98               (H)  MINUTE(JUD)                                        
 3/05/98               (H)  RES AT  1:00 PM CAPITOL 124                        
 3/05/98               (H)  MINUTE(RES)                                        
 3/06/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/06/98               (H)  MINUTE(JUD)                                        
 3/06/98      2538     (H)  RES RPT  CS(RES)NT 3DP 1DNP 1NR 3AM                
 3/06/98      2539     (H)  DP: DYSON, GREEN, OGAN; DNP: JOULE;                
 3/06/98      2539     (H)  NR: BARNES; AM: MASEK, WILLIAMS,                   
                            HUDSON                                             
 3/06/98      2539     (H)  2 ZERO FISCAL NOTES (F&G, LAW)                     
 3/06/98      2539     (H)  REFERRED TO JUDICIARY                              
 3/09/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/09/98               (H)  MINUTE(JUD)                                        
 3/11/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/11/98               (H)  MINUTE(JUD)                                        
 3/18/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/18/98               (H)  MINUTE(JUD)                                        
 3/20/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/20/98               (H)  MINUTE(JUD)                                        
 3/23/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/23/98               (H)  MINUTE(JUD) (MTG CANCELLED)                        
 3/25/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/25/98               (H)  MINUTE(JUD)                                        
 3/27/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
 3/27/98               (H)  MINUTE(JUD)                                        
 3/28/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
                                                                               
WITNESS REGISTER                                                               
                                                                               
PATRICK DALTON                                                                 
P.O. Box 1413                                                                  
Delta Junction, Alaska  99737                                                  
Telephone:  (Not provided)                                                     
POSITION STATEMENT:  Testified on HB 406.                                      
                                                                               
JAKE OLANNA                                                                    
Kawerak, Incorporated                                                          
P.O. Box 948                                                                   
Nome, Alaska  99762                                                            
Telephone:  (907) 443-5231                                                     
POSITION STATEMENT:  Testified on HB 406.                                      
                                                                               
PERRY MENDENHALL                                                               
Sitnasuak Native Corporation                                                   
P.O. Box 1141                                                                  
Nome, Alaska  99762                                                            
Telephone:  (907) 443-2455                                                     
POSITION STATEMENT:  Testified on HB 406.                                      
                                                                               
DONALD WESTLUND                                                                
P.O. Box 871                                                                   
Ketchikan, Alaska  99901                                                       
Telephone:  (907) 225-9319                                                     
POSITION STATEMENT:  Testified on HB 406.                                      
                                                                               
TOM LACKOSH                                                                    
P.O. Box 100648                                                                
Anchorage, Alaska  99510                                                       
Telephone:  (907) 563-7380                                                     
POSITION STATEMENT:  Testified on HB 406.                                      
                                                                               
JOHN BORBRIDGE                                                                 
603 West 10th Street                                                           
Juneau, Alaska  99801                                                          
Telephone:  (907) 586-2132                                                     
POSITION STATEMENT:  Testified on subsistence and the special                  
                     relationship between the federal government               
                     and Native Americans.                                     
                                                                               
ACTION NARRATIVE                                                               
                                                                               
TAPE 98-48, SIDE A                                                             
Number 0001                                                                    
                                                                               
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee               
meeting to order at 1:14 p.m.  Members present at the call to order            
were Representatives Green and Porter.                                         
                                                                               
HB 406 - SUBSISTENCE USES OF FISH AND GAME                                     
                                                                               
CHAIRMAN GREEN announced the committee would hear HB 406, "An Act              
relating to subsistence uses of fish and game."  He noted that the             
hearing was a continuation from the previous day, and there were               
several people to testify.                                                     
                                                                               
Number 0075                                                                    
                                                                               
PATRICK DALTON testified via teleconference from Delta Junction,               
saying the original of HB 406 seemed a fair bill, with the                     
exception of some responsibilities placed on the boards.  However,             
he had serious objections to the work draft provided the previous              
week, in which the focus had changed completely.  He finds                     
seriously unfair the limiting of subsistence qualifications by                 
geographical area.  He provides 90 percent or more of his family's             
meat requirements from hunting or fishing; with six children and a             
wife, it is a huge responsibility.  To meet those requirements, he             
must travel through three different fish and game areas.  He fishes            
in Copper Center and hunts caribou near Tok.  He cannot obtain                 
those wildlife resources near Delta Junction, and he objects to a              
person being required to live where that resource is in order to               
qualify for subsistence.                                                       
                                                                               
Number 0210                                                                    
                                                                               
CHAIRMAN GREEN asked whether Mr. Dalton was aware that the only                
time he would be restricted by not living in the area would be in              
a time of shortage.                                                            
                                                                               
MR. DALTON replied that as he understands it, this could affect him            
even next year, because the Forty Mile caribou hunt is designated              
as a subsistence hunt for which he has qualified under the                     
subsistence rules.  If it were changed to include just the Tok area            
or the Taylor Highway, he would no longer be able to hunt there for            
caribou.  The most reasonable and fair thing he had come up with               
would be to pre-qualify users in an area, but also to provide that             
others who would have to travel could still qualify if the species             
were endangered.                                                               
                                                                               
CHAIRMAN GREEN pointed out that if a person has customarily                    
traveled to an area to get fish or game, and if the person can show            
that and show reliance on that resource, there is a rebuttable                 
presumption that can be overcome by showing the historical need and            
use.  In addition, a person can go to areas that are not designated            
as subsistence and hunt there.                                                 
                                                                               
Number 0430                                                                    
                                                                               
MR. DALTON said it still seems that is giving a select group of                
citizens more rights than others, although he sees what they are               
getting at.  Local people would benefit more anyway, because they              
would know better where those resources are.  He still disagrees               
somewhat on that area.  Furthermore, it would place a large burden             
on the boards, and he doesn't think the boards are qualified to                
determine economic needs of individuals; they are experts in fish              
and wildlife.  He suggested there should be objective criteria                 
established, which could not be influenced by personalities on the             
board.  It should be a truly fair system, and Mr. Dalton questioned            
whether the board members could be fair in this regard.                        
                                                                               
CHAIRMAN GREEN said that is a good point.  He asked Mr. Dalton                 
which version he was addressing, noting that there have been                   
revisions of the work draft.  He said the next-to-last draft was               
Version R, and now there is a more recent one, Version X.  "And                
your concerns about the individual's economic situation has been               
removed," Chairman Green said.                                                 
                                                                               
Number 0574                                                                    
                                                                               
MR. DALTON asked what kind of objective criteria they had ended up             
with to establish whether a person qualifies for subsistence.                  
                                                                               
CHAIRMAN GREEN explained that the first pass at the subsistence                
priority would be by area, not by individual.  If there were enough            
surplus animals or fish to satisfy the needs of the area, but not              
enough to allow personal use and other conditions to take place,               
that area is called a subsistence area.  He said, "Now, if there               
are even fewer specific species within the area designated for                 
subsistence, then there is a litany of conditions that the Fish and            
Game department would use to determine who, among those who are                
residents, have the priority.  It may be they reduce everybody in              
there to a certain take.  They may reduce some based on ... having             
had a longer period of need, or, like in your family, they may say,            
'Well, gee whiz, here's Patrick Dalton and he's got nine mouths to             
feed; he would have a priority over Joe Green, who might only have             
two mouths to feed,' that sort of thing.  That would be left to                
Fish and Game's discretion, but it would be only after the area has            
been determined, and not by cause of the individual's economic or              
any other particular condition."                                               
                                                                               
Number 0671                                                                    
                                                                               
MR. DALTON mentioned a third point.  The original version of HB 406            
had a $5 hunting license for people on welfare or making up to                 
$8,200 per year gross income.  Mr. Dalton said he had never taken              
welfare payments, but if his income fell a little above that, he               
still wouldn't qualify for that license.  Furthermore, the income              
requirements don't take into account the number of mouths a person             
has to feed.  It is unfair in some circumstances.                              
                                                                               
CHAIRMAN GREEN concurred and said that condition has been removed.             
                                                                               
Number 0788                                                                    
                                                                               
JAKE OLANNA, Kawerak, Incorporated, testified via teleconference               
from Nome.  He commented on the section titled, "Subsistence use               
and allocation of fish and game," mentioning that "accommodation"              
had been penciled in on the draft he had.  In his view,                        
accommodation provides less protection than reasonable opportunity             
does.  He then referred to "portion of the residents" and mentioned            
subsistence users in the Nome region.  Under the qualifications, it            
lists a community with fewer than 1,000 residents; he believes that            
would discriminate against people living in Nome, Bethel or other              
large hubs.  Mr. Olanna said he also hears that this doesn't meet              
the requirements of ANILCA, which addresses customary and                      
traditional uses and the protection of those needs.  He mentioned              
the elderly, as well as widows, who don't have the resources to go             
out and hunt.                                                                  
                                                                               
CHAIRMAN GREEN asked whether Mr. Olanna had received Version X,                
noting that in that version, Mr. Olanna's concerns had been                    
removed.  He asked that Mr. Olanna contact the committee on Monday             
if he still had concerns after reading that.                                   
                                                                               
Number 0950                                                                    
                                                                               
PERRY MENDENHALL, Sitnasuak Native Corporation, testified via                  
teleconference from Nome, saying he basically has the same                     
concerns.  Raised in Nome, he said there are quite a few projects              
in the area whereby they are trying to teach their children how to             
subsist as well.  He also has concerns about the 1,000 population              
limit.  Nome is 60 percent Native, and they hunt and fish in that              
region, with 350 fish camps, for example.  He mentioned shortages              
and the Tier II procedures, indicating the Board of Fisheries had              
left them to handle it, with review scheduled for March 1999.  He              
said this is a test case, and he would like the bill to accommodate            
the process they are going through, and to acknowledge the work                
they will be doing to deal with the allocation of fish for                     
subsistence use.                                                               
                                                                               
MR. MENDENHALL expressed concern that the people of Nome have                  
access to that process.  Many people in the area will be facing                
welfare reform and losing jobs; they will be more dependent on fish            
and game than ever, going back to the old ways.  He pointed out                
that Bering Straits Region has always been an economically                     
depressed area, according to the Department of Community and                   
Regional Affairs papers and files; it has been on the books since              
statehood in that manner, to show that they are a subsistence                  
community.                                                                     
                                                                               
Number 1045                                                                    
                                                                               
MR. MENDENHALL told members they have no foreseeable economic                  
development that is secure, to replace jobs being lost through                 
state and federal budget cuts and because of the dropping price of             
gold.  He said 65 jobs have been lost for the next year, and people            
are leaving Nome.  He suggested that people there tend to run for              
office, make projects, impose taxes and laws, and then leave.                  
Those who remain have to live with those rules and regulations. He             
questioned whether people in power understand the subsistence                  
lifestyle, saying it is not a matter of choice, but a way of life,             
which the Alaska Federation of Natives (AFN) has tried to bring                
out.                                                                           
                                                                               
CHAIRMAN GREEN asked that Mr. Mendenhall look at Version X and told            
him that is exactly what they are trying to do, to return it to                
being somewhat like it was before, "and that we want to get out of             
your way and allow you to do this."  He explained that when it gets            
down to being close to the sustained yield level, Mr. Mendenhall               
and his area would still have a priority.                                      
                                                                               
MR. MENDENHALL said he doesn't have Version X.                                 
                                                                               
CHAIRMAN GREEN replied that it is at least en route.  He asked that            
Mr. Mendenhall contact the committee if he still had concerns after            
reading it.                                                                    
                                                                               
Number 1232                                                                    
                                                                               
DONALD WESTLUND testified via teleconference from Ketchikan,                   
suggesting they may be going a little farther than necessary.  He              
said the agents of the federal government in Ketchikan have said               
that the state of Alaska has done a very good job in supplying                 
subsistence resources for the subsistence users.  It is the 9th                
District federal court that has ruled that Alaska is in violation              
of ANILCA.  It is not whether there is enough resource out there,              
or whether we're providing enough, but it is the decision based on             
whether a person in Alaska is a rural or nonrural person; that is              
what violates the state constitution.                                          
                                                                               
MR. WESTLUND said he had the proposed constitutional amendment in              
front of him; it will create two different entities in the state,              
the "haves" and the "have nots."  He said he kind of agrees with               
Mr. Bishop's testimony the previous day, that maybe the state                  
should draw a line and say, 'Cross it.'  He stated, "I'm not sure              
that's the way to go, but I have tendencies to go that way."                   
                                                                               
MR. WESTLUND acknowledged that up north there may be areas where               
people subsist off the land.  However, in most areas, that is no               
longer true; there are stores and people buy things.  He referred              
to the 1990 federal census and noted that Ketchikan is 75th and                
Anchorage is 32nd in average household income.  Mr. Mendenhall                 
suggested it is ridiculous to say people subsist off the land if               
they buy staples from the store.  ANILCA should be changed in a way            
that allows for personal use only by state residents.                          
                                                                               
MR. WESTLUND questioned how, once a priority is given to somebody              
or the constitution is changed, the state could take back that                 
privilege if it prevails in its lawsuit.  He concluded by saying               
the work draft of HB 406 has come a long ways from the original; he            
believes is it better as an alternative to the lawsuit.  However,              
he would like to see the lawsuit be tried before they convey this              
privilege, which will be very difficult to take back.                          
                                                                               
Number 1464                                                                    
                                                                               
CHAIRMAN GREEN pointed out the direct tie between the                          
constitutional change and the requirements to get some relief from             
ANILCA:  If the state doesn't get those changes in ANILCA, then the            
constitutional amendment would become null and void.  He also                  
emphasized that when talking about the subsistence preference, they            
are only talking about that area which is adversely impacted, and              
it is only for the length of time when that adversity exists.  It              
could be a season or part of a season, unless the low surplus just             
above the sustainable yield continued.                                         
                                                                               
CHAIRMAN GREEN noted that both HB 406 and the lawsuit are going                
forward.  If the state wins on the three-point suit against the                
federal government, that also would negate any need to change the              
constitution.  Furthermore, if they were to vote to change the                 
constitution but should win the lawsuit in 1999, that would still              
negate that change.  They are trying to do both and are not putting            
all their eggs in one basket.                                                  
                                                                               
MR. WESTLUND agreed.  He cited a Dr. Seuss book, Yertle the Turtle,            
with its good moral, and suggested that many an Alaskan is a                   
"Mack" from that story.                                                        
                                                                               
Number 1600                                                                    
                                                                               
TOM LACKOSH testified via teleconference from Anchorage, saying                
there seem to be a number of arbitrary measures here for assessing             
the right to partake in subsistence hunting and fishing, as well as            
in the establishment of nonsubsistence areas.  He stated, "I think             
you're going to find that you've created a circumstance here where             
you will create strife between all sorts of communities because                
there is no clear delineation of what an area should be, and that              
there are some 14 different criteria which will possibly exclude               
any given area from the ability to be a subsistence area.  And                 
then, you have criteria here which set up the ability to be a                  
subsistence area by the harvest level of fish and game, of those               
domiciled in the area."                                                        
                                                                               
MR. LACKOSH continued, "And then, you have essentially created a               
nonsubsistence area by the allocation policies of Fish and Game.               
So, what you have here is a set of arbitrary criteria, which not               
only does it create strife but a disharmony among the citizens of              
the state for this particular issue; but we may be finding                     
ourselves in a situation later where, because some area doesn't                
have [a] cash-based economy, that they might not be entitled to                
their permanent fund [dividend] because they don't use cash, or                
they might not be entitled to their longevity bonus."                          
                                                                               
MR. LACKOSH concluded, "And to disparately treat the decisions of              
this state in such a manner ... contradicts directly the terms of              
the common use and equal protection under the law that was set up              
in the constitution, specifically because there was a                          
disproportionate harvest by commercial interests, and that there               
was not only a control of the resources but of the political base              
as well to those companies who had fish traps.  And I most strongly            
advise that the committee go back and look at Dick Fisher's (ph)               
books on the constitution and how it was espoused, and look at the             
constitutional history to see exactly why we have such strong                  
provisions for common use and equal protection under the law."                 
                                                                               
CHAIRMAN GREEN noted that those were the only testifiers on                    
teleconference.  He called on John Borbridge from the audience.                
                                                                               
Number 1723                                                                    
                                                                               
JOHN BORBRIDGE came forward to testify, specifying that he is a                
Juneau resident and a Tlingit Indian whose tribal roots trace back             
to Yakutat.  His testimony would represent his personal views on               
subsistence, as well as his experience and training as they relate             
to subsistence.  He related that he was elected president of the               
central council of the Tlingit and Haida Indians of Alaska; later,             
he was president and chairman of the board of Sealaska.  In                    
addition, he was one of the principal architects of the Alaska                 
Native Claims Settlement Act (ANCSA), and was president during the             
early shaping of Title VIII of ANILCA, as well as being a                      
congressional appointee as commissioner to the American Indian                 
Policy Review Commission, where they conducted a comprehensive                 
review of the federal government's historical and special legal                
relationship with the American Indian people.                                  
                                                                               
MR. BORBRIDGE said he intended in the future to comment                        
specifically on the evolving bill.  In both this committee and the             
House Resources Standing Committee, he had come to appreciate that             
a number of statements have been made about Congress' authority to             
evolve such a law as Title VIII and whether there is sort of a                 
racial question being raised by having the Alaska Natives as                   
beneficiaries.                                                                 
                                                                               
MR. BORBRIDGE stated, "And this is why I've come today.  My direct             
participation in the subsistence lifestyle - not on a steady basis             
but over the years - ranged from Southeast Alaska to Bristol Bay.              
And as a subsistence specialist for the Bureau of Indian Affairs               
from 1989 to 1996, I was involved from the outset in federal                   
management of subsistence uses of resources on public and other                
lands in Alaska.  And I hope to be able to state, later in my                  
testimony, that one of the untold and little-appreciated genuine               
success stories of federal management has been the functioning and             
participation in the role of the various regional advisory councils            
in that system."                                                               
                                                                               
Number 1846                                                                    
                                                                               
MR. BORBRIDGE told members it is beyond argument that the United               
States Congress has the power to set up a resource management                  
regimen for the Alaska Natives and to confirm their right to                   
subsist on the public lands of Alaska owned by the people of the               
United States.  He stated, "The Indians, Eskimos and Aleuts and                
non-Natives are simultaneously fellow Alaskans and fellow U.S.                 
citizens, and a people who, as Alaska Natives and Native Americans             
or American Indians, enjoy a special and unique relationship with              
the federal government.  And I think it's unfortunate, Mr.                     
Chairman, that we Alaska Natives have not explained that more.  I              
know that it ... has been related to a number of friends in a very             
sincere way that they don't understand how there can be differences            
when we are on one hand fellow Alaskans and fellow U.S. citizens,              
and on the other hand, we have a unique relationship with the                  
federal government.  And they've asked, 'What does it mean?  And               
how does it impact on subsistence?'  And this relationship, this               
special relationship, has been little understood, sometimes                    
ignored, and attacked as racist by those who lack a complete                   
understanding of the provisions of the U.S. Constitution, which                
gives Indians a unique status."                                                
                                                                               
MR. BORBRIDGE continued, "The federal government owes the Native               
Americans, of whom the Alaska Natives are a part, the obligation of            
its trusteeship, not because of our poverty or the government's                
wrongdoing in the past, but because within the federal system the              
government's relationship with the Native Americans are of the                 
highest legal standing, established through solemn treaties and a              
series of judicial decisions and legislative actions.  This                    
responsibility originated largely from the following three sources:            
(1) the treaties negotiated with the Indian tribes, in which the               
United States acquired vast areas of land in exchange for its                  
solemn commitment to protect the members of the tribes and their               
property from encroachment by U.S. citizens; (2) statutory                     
enactment dating from the Continental Congress to the present,                 
regulating transactions between U.S. citizens and members of the               
Indian tribes; (3) innumerable transactions in which, in the latter            
half of the nineteenth century, the United States imposed a complex            
and vast array of regulatory authority over Indians and their                  
property, coincident with its assumption of control over the people            
and property of the Indian tribes."                                            
                                                                               
MR. BORBRIDGE told members the assumption of this authority over               
Indian people was accomplished by responsibility to the Indian                 
people.  Despite the foregoing, litigants have argued that federal             
law singling out Indians, inclusive of Alaska Natives, as a class              
violate the equal protection standard of the Fifth Amendment.                  
Others have contended that state actions recognizing the distinct              
status of Indians or particular tribes under federal laws and                  
treaties violate the equal protection of the Fourteenth Amendment.             
                                                                               
Number 1984                                                                    
                                                                               
MR. BORBRIDGE reported that the power of Congress to enact                     
legislation singling out Indian lands or rights for special                    
treatment was upheld in Morton v. Mancari (1974), in which the U.S.            
Supreme Court held unanimously that, "The plenary power of Congress            
to deal with the special problems of the Indian is drawn both                  
explicitly and implicitly from the Constitution itself."                       
Additionally, the court said, "As long as the special treatment can            
be tied rationally to the fulfillment of Congress' unique                      
obligation toward the Indians, such legislative judgments will not             
be disturbed."                                                                 
                                                                               
MR. BORBRIDGE said similarly, in United States v. Antelope (1977),             
the court revisited the subject of Native rights in the                        
Constitution.  In a unanimous decision, they stated, "The decisions            
of this court leave no doubt that federal legislation with respect             
to Indian tribes, although relating to Indians as such, is not                 
based upon impermissible racial classification.  Quite the                     
contrary, classifications expressly singling out Indian tribes as              
subjects of legislation are expressly provided for in the                      
Constitution and supported by the ensuing history of the federal               
government's relations with Indians."                                          
                                                                               
Number 2040                                                                    
                                                                               
CHAIRMAN GREEN, noting that Mr. Borbridge was reading from a                   
document, asked whether he could provide a copy for the record.                
                                                                               
MR. BORBRIDGE explained that he was hitting facets that had come up            
in meetings of the various committees.                                         
                                                                               
Number 2077                                                                    
                                                                               
MR. BORBRIDGE referred to statements and questions he had heard                
about ANCSA, such as whether there was an end to aboriginal hunting            
and fishing rights, and how the Natives can now come in and talk               
about rights in terms of subsistence.  He said Congress in this                
regard has followed the usual pattern by creating new rights and               
new land titles for the aboriginal rights cancelled as part of the             
general settlement.  For example, it extinguished the aboriginal               
land title but in return gave the Natives a fee-simple title to 40             
million acres of Alaska land.  While with one hand it extinguished             
all aboriginal use rights, including the aboriginal right to hunt              
and fish, with the other it took steps to confirm the existing                 
subsistence rights of Alaska Natives by directing the Secretary of             
the Interior to take "any action necessary to protect the                      
subsistence needs of the Natives."                                             
                                                                               
MR. BORBRIDGE said the legislative history of ANCSA further reveals            
that it was anticipated that the state of Alaska could and would               
assist the Secretary of the Interior in evolving policies, which               
likewise would protect the subsistence activities that Natives on              
the lands granted to the state under the Alaska Statehood Act.  He             
stated, "In 1968, prior to passage of ANCSA itself, there was a                
massive compendium of information contained in Alaska Natives of               
the Land, as compiled by the federal field committee for                       
development and planning in Alaska.  That document concluded,                  
'There is no dispute that the right of Alaska Natives to go upon               
federal lands for the purpose of taking fish and game should                   
continue.'"                                                                    
                                                                               
Number 2158                                                                    
                                                                               
MR. BORBRIDGE continued, "And so, during the consideration of                  
ANCSA, Congress looked hard at the subsistence provision.  There               
were three things that we Natives brought before the Congress:                 
land, subsistence, compensation for lands which would be lost as a             
consequence of passage of the settlement Act."  He said the Senate             
committee report, which deals with Senate Bill 35, the last bill               
that the Congress passed on the Senate side, concluded that the                
Natives did not need to own the land they use to harvest                       
subsistence resources.  It likewise determined that one reason                 
these lands should remain in federal ownership was to ensure the               
protection of Native subsistence rights.  Mr. Borbridge commented,             
"So, clearly the Senate didn't think this would be impossible, but             
then I guess they didn't have to deal with the administration, as              
we did."                                                                       
                                                                               
MR. BORBRIDGE informed members that in the report, the Senate                  
committee stated, "Despite the passage of control and management               
over resident fish and wildlife to the state, the federal                      
government still holds the power to control the disposition of and             
entry upon the land."  He indicated that Senate Bill 35 would have             
directed the Secretary of the Interior to classify lands for                   
habitat and to consider closure for purposes of protection for                 
subsistence.  Mr. Borbridge stated, "And there were differences,               
again, between the Senate and the House version, and of course,                
this committee has had brought to its attention the conference                 
committee report which made reference to the different bills and               
the different approaches to subsistence."                                      
                                                                               
Number 2235                                                                    
                                                                               
MR. BORBRIDGE told members that in his individual capacity, he is              
coming before them to say this is the unfinished chapter of ANCSA.             
"We tend to see it as separate from that," he commented.  "I don't             
see it that way, as one involved from the outset, from the first               
bill to the final bill.  This is the final unfinished chapter.  The            
Natives sought land, and we received the land, although it's still             
being processed.  We sought compensation, and that has been                    
forthcoming.  It is subsistence that is the unfinished chapter."               
                                                                               
MR. BORBRIDGE continued, "We feel that there is an express and                 
implicit ... promise that there will be, as part of the settlement             
package, the right of the Natives to enjoy subsistence.  What I've             
sought to do today is to remove the thought that this is a racial              
issue.  Clearly, it is not.  Unfortunately, [the] unique status we             
enjoy in our relationship with the federal government, Mr.                     
Chairman, is not well-understood, and it gives rise to intemperate             
remarks about racism and treatment of a special class differently.             
Actually, I feel - and as I conclude my comments - that the United             
States is to be complimented, however imperfect the legislation                
was, for seeing to the passage of the claims settlement Act as a               
way of doing justice.  I feel also that the Native people are                  
seeking the fulfillment of those promises that were made in ANCSA.             
And I've heard Representative Bill Williams comment on this; he is             
exactly on target, Mr. Chairman.  This is a promise, and we want to            
see it to its fulfillment."                                                    
                                                                               
MR. BORBRIDGE concluded, "Since the Alaska Natives use subsistence             
resources to supply both physical and cultural needs, Congress                 
clearly has the authority to set up a subsistence system giving                
preference to the Natives, which satisfies the U.S. Constitution               
and is, quote, 'tied rationally to the fulfillment of Congress'                
unique obligation toward the Indian, and inclusive of the Alaska               
Natives [no end quote provided].  Particularly, there can be no                
doubt when this authority is combined with the plenary power                   
Congress also has under the property clause to regulate the use of             
the renewable resources of the public lands."                                  
                                                                               
MR. BORBRIDGE expressed appreciation for the committee's efforts               
and complimented members for seeing the importance of discussing               
the kinds of things he had presented that day.  He expressed hope              
that the information he had provided would allow people to feel                
more comfortable about the federal power and the relationship of               
the Alaska Natives to the federal government.                                  
                                                                               
Number 2388                                                                    
                                                                               
CHAIRMAN GREEN responded, "John, thank you.  I think you bring an              
insight that a lot of us really don't understand.  Certainly, if we            
even approach understanding, it's because we've read about it or               
heard about it; we haven't lived it."  He noted the difference                 
between Alaska and the Lower 48, as well as the large numbers of               
non-Natives in many villages.  He suggested that perhaps Alaska is             
ahead of the Lower 48 in that the majority of people don't feel                
there is a class distinction.  Crafting something that would give              
some village residents a preference over others would, he believes,            
create a wedge.  Chairman Green stated his belief that most                    
Alaskans would like to see that wedge removed and to look at each              
other as Alaskans, "and if we have a problem with the federal                  
government, we as Alaskans want to solve that problem, rather than             
having the federal government come in [ends mid-speech because of              
tape change]."                                                                 
                                                                               
TAPE 98-48, SIDE B                                                             
Number 0006                                                                    
                                                                               
CHAIRMAN GREEN noted that rural Alaska isn't for the most part                 
agricultural, which people in the Lower 48 might not understand.               
He asked whether in reading this, Mr. Borbridge sees that the                  
effort truly is to continue to provide village residents with the              
way of life they have.  The only time this would kick in is when               
there is a threat to that way of life, in order to protect it.                 
                                                                               
MR. BORBRIDGE said he appreciates that, then noted that we have                
functioned as a state under Title VIII, the aims and intentions of             
which he considers very laudable.  Mr. Borbridge stated, "They do              
a compliment to this country, in that as it sought to do justice               
through the passage of ANCSA, the same was in mind with the                    
enactment of Title VIII, which really came about solely because                
Alaska Native people sought it, and because the chairman of the                
House Interior and Insular Affairs, Representative Udall, agreed to            
be prime sponsor; and that's why there is a Title VIII."                       
                                                                               
Number 0077                                                                    
                                                                               
MR. BORBRIDGE continued, "The main concern I have ... is this:  We             
are in the very ironic situation - and I don't lay this on the                 
committee one bit; we're all a part of what's happening - and that             
is the Alaska Natives didn't come in and say, 'Well, we've been                
enjoying Title VIII and the priority under Title VIII, and we need             
some help.'  We have been calmly going about enjoying the benefits             
intended to be ours under Title VIII, and now these changes are                
being considered.  And I've always thought, maybe in an ideal                  
world, that if we looked at Title VIII and looked at how we were               
benefiting from its implementation, it'd be far better if the                  
committee were to come in and then say, 'Here's how we want to                 
improve it.'"                                                                  
                                                                               
MR. BORBRIDGE continued, "What I see, and what really concerns me -            
and this is not at all with respect to the bill that's come - is               
that I always have this uneasy feeling that we are going to lose               
some more rights, Mr. Chairman, and that before things are done,               
we're going to enjoy less rights under Title VIII than we did                  
before.  I appreciate their concerns about 'should we have a                   
constitutional amendment or not,' and I'm puzzling myself over                 
that, along with the rest.  But while we're concerned about that,              
I think the real thing - and the number one thing to me - is what              
is the intention of Title VIII, is that there be a subsistence                 
preference, and that a way of life be allowed to continue and be               
protected.  That's what Congress said."                                        
                                                                               
Number 0154                                                                    
                                                                               
CHAIRMAN GREEN responded, "That's what we're trying to say as                  
well."                                                                         
                                                                               
MR. BORBRIDGE said he appreciates that, and also appreciates people            
who come in on a Saturday and are willing to work on it.                       
                                                                               
REPRESENTATIVE PORTER expressed appreciation for Mr. Borbridge's               
testimony as well.  He then said, "I think that it's painfully                 
evident that if we're going to reach a solution that's going to                
work for the entire state, that the Native community has to be a               
part of that solution.  Having said that, I especially appreciate              
your kindness to the United States; I don't particularly share it,             
with relationship to their treatment of Indian relations over the              
years, right up to ANILCA."                                                    
                                                                               
REPRESENTATIVE PORTER continued, "Representative Williams made us              
all read the report of the conference committee, that we certainly             
have read and agree with, that these statements were made.                     
Unfortunately, they were made at a time -- as if this were the                 
forum that they were made in; we would be telling you something                
now, but we wouldn't back it up by putting it in the bill that we              
passed.  They didn't.  They just said somebody should, later.  And             
then they passed ANILCA, and they still didn't do it; they said a              
rural preference, they said nothing about the relationship which               
they certainly - and we agree - have the authority to do with                  
Indians and Alaska Natives.  They didn't do it.  So, here we are,              
stuck with a conflict with our constitution and that federal law,              
and don't have the tools that the United States Congress has to                
resolve them."                                                                 
                                                                               
REPRESENTATIVE PORTER continued, "Having said all that, let me say             
that I think this committee's goal is to try to come up with                   
something that will provide you with just what you've asked for.               
It may not be said as precisely as we'd like to, but we're                     
precluded, because of Congress' action, from saying it                         
specifically.  That's the goal, and I really appreciate your being             
here to help us with it."                                                      
                                                                               
MR. BORBRIDGE indicated he anticipates revising his written                    
testimony somewhat and then handing it in to the committee.                    
                                                                               
CHAIRMAN GREEN encouraged Mr. Borbridge to come back before the                
committee.  He apologized for the absence of five members, noting              
that three were out of town.  [HB 406 was held over.]                          
                                                                               
ADJOURNMENT                                                                    
                                                                               
Number 0308                                                                    
                                                                               
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee at             
2:10 p.m.                                                                      

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